Lung cancer suits are new trend in asbestos litigation; Filings discussed at recent California asbestos conference

When it comes to new trends in asbestos litigation, the increasing number of lung cancer suits would probably top the list.

The reason behind the surge, however, doesn’t appear to be as concrete as the numbers. Some attorneys point to competition between asbestos law firms while others say the rise is a natural result of the nation’s climbing rate of lung cancer diagnoses.

This trend was highlighted at a two-day conference earlier this month in Beverly Hills, Calif. Organized by Perrin Conferences, the “Cutting-Edge Issues in Asbestos Litigation Conference” included sessions on a variety of issues from bankruptcy and insurance to exposure and ethics.

Timothy L. Krippner, an attorney at Segal McCambridge Singer & Mahoney in Chicago who represents asbestos defendants, said the surge in lung cancer filings represents a major litigation trend for 2013, noting that “within the last 18 months, we have seen a dramatic increase across the nation.”

Krippner served as co-chairman of the conference, along with plaintiffs’ attorneys John D. Cooney of Cooney & Conway in Chicago and Jeffrey B. Simon of Simon Greenstone Panatier Bartlett in Dallas.

In Krippner’s view, the increase in asbestos lung cancer cases is “competitive driven.”

“I believe there are new firms trying to gain footholds in asbestos litigation,” he said in a telephone interview “A lot of it has to do with the referral process on the plaintiffs’ side.”

He added, “There are a few firms that want to push the lung cancer issue” and “a couple of firms that believe they can successfully push the envelope.”

Krippner said he believes “that the greatest force behind the increased filings in Madison County and elsewhere in the county, and the greatest threat to the viability of the resources needed for people with mesothelioma, are these lung cancer cases.”

Simon, the Texas plaintiffs’ lawyer who co-chaired the conference with Krippner and Cooney, said “my firm has not filed more lung cancer” cases and said one would have to ask the firms that have filed more to find out their reasoning.

“I guess there are firms that have focused their energy on those cases, in a more vigorous way than we do,” he said. “We certainly have a handful of lung cancer cases, but it’s not our primary focus.”

In general, “some firms are filing more, but I can’t tell you why,” Simon said, adding that asbestos can cause lung cancer and one would assume attorneys file suits when evidence shows the plaintiff’s lung cancer is indeed asbestos-related.

Cooney, the third co-chairman of the conference, did not return a message.

Krippner said asbestos lung cancer filings create challenges for everyone involved in the litigation.

“There needs to be a lot of discourse, defendants don’t have money and courts don’t have docket space,” he said, adding that if the increase in lung cancer filings continues, “those who are advocates for people with mesothelioma will lose their venue.”

In addition to the common and complicated issues that arise in mesothelioma cases, Krippner said these lung cancer cases present additional litigation hurdles given how new the trend is.

“It's too early to tell how the courts are going to react,” he said. “Everyone’s watching it and is very concerned. At this point, there are very few answers.”

The issue of increased lung cancer filings was discussed at an asbestos conference that took place last fall in Chicago.

One of the presenters at that conference, Edwardsville attorney Brian Huelsmann, noted that some of the new law firms and players in the Madison County asbestos arena appeared to be the ones filing lung cancer cases.

For instance, he said that as of August 2012, Napoli Bern Ripka Shkolnik filed about 130 asbestos cases and that the vast majority – 117 --- focused on lung cancer, as opposed to mesothelioma.

By the end of 2012, Napoli Bern, a national plaintiffs’ firm that opened up an Edwardsville office relatively recently, nabbed the No. 3 spot for filing the most asbestos filings at 343, behind the Simmons Law Firm in Alton and Gori Julian & Associates in Edwardsville.

Barry Julian of Gori Julian in Edwardsville was scheduled to speak at the recent conference in California during a session titled “The Emerging Lung Cancer Case: An Analysis of Surging Filing Trends, Asbestos Trust Issues and the Modern Causation Case.” He did not return a message.

Another attorney from the Metro East, Perry Browder of the Simmons Law Firm, was also slated to speak at the conference during a session on the top trends in 2013 asbestos litigation. He also did not return a message.

Lung cancer filings aside, Krippner and Simon said another major issue affecting asbestos litigation stems from the bankruptcy trusts that were created in order for bankrupt asbestos defendants to pay injured plaintiffs.

That, they said, is still playing out and like the lung cancer trend, remains something asbestos attorneys should keep their eyes on going forward.